Judge denies Fox’s request to stop Dish’s commercial-skipping service

Ruling suggests judge is sympathetic to Dish's fair use argument.

A federal judge refused to issue a preliminary injunction in a case pitting the Dish satellite network against the Fox media empire. The dispute is over the legality of Dish's Hopper DVRs, especially its "AutoHop" feature. That automatically detects and skips over commercials. Fox argues that Dish has a "clear goal of violating copyrights and destroying the fundamental underpinnings of the broadcast television ecosystem."

But Judge Dolly Gee apparently doesn't think the case against AutoHop is so clear. According to TheHollywood Reporter, she denied Fox's request for a preliminary injunction. That means Dish will be allowed to continue marketing the product while the litigation proceeds.

The decision is sealed to protect the confidential terms of Fox's contract with Dish, and a redacted version of the decision has yet to be published. But Fox confirmed to TheHollywood Reporter that Judge Gee denied Fox's request for an injunction.

John Bergmayer, an attorney at Public Knowledge, praised the decision to deny a preliminary injunction. "Consumers have the right to make home recordings, and technology companies don't break the law when they create new and improved devices," Bergmayer told us in an e-mailed statement. "We're confident that the rights of television viewers and innovators will be continue to be vindicated in this matter."

Bergmayer said on Twitter he hasn't seen the decision himself, but it is rumored to be "good on fair use."

Of course, Fox has the opposite view. "Dish is marketing and benefitting from an unauthorized VOD service that illegally copies Fox’s valuable programming," Fox said. The company has vowed to appeal the decision.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

Dish may have won this battle but I don't see them winning the war. Already suffering subscriber loss, Dish threw a hail Mary pass in offering this feature. Customers cheer at the expense of an entire industry. While I'd love the feature myself, I also realize that programming is funded by ads. If it's too easy to suppress ads the system doesn't work. Just look at Netflix's financial difficulties caused by demands from networks for ever increasing $$ to supply content.

This is just going to lead us back to the days of embedded ads and product placements.

Haven't you seen shows dedicate an entire 60 seconds to a car parking itself, with the logo prominently visible? Haven't you seen Big Mike relishing in the consumption of a sandwich on the show Chuck? Those days are already here.

This is just going to lead us back to the days of embedded ads and product placements.

Haven't you seen shows dedicate an entire 60 seconds to a car parking itself, with the logo prominently visible? Haven't you seen Big Mike relishing in the consumption of a sandwich on the show Chuck? Those days are already here.

Well it's not the same thing. Imagine watching a reality show, and instead of just having product being placed here and there, they actively say they are sponsored by xyz, and spend 2 minutes every 10 minutes talking about why you should get it etc.

Dish has always played hardball with content providers and has threatened numerous times to drop providers over contract disputes, rate increases, etc. I'm sure this will be no different.

As for Fox having a case, I really doubt it. DVRs were considered fair use for personal viewing and as long as this is skipping chunks of recorded programming, I'd be believe this would be seen as analogous to fast forward. If it's recorded then trying to pass this off as VOD is just nonsense. What I do think will happen is that Fox will offer Dish a really awful contract once their current one expires and Dish in turn will tell them to take a hike. And once they settle their spat the worst I could see is that this feature won't be enabled on future receivers.

This is just going to lead us back to the days of embedded ads and product placements.

Haven't you seen shows dedicate an entire 60 seconds to a car parking itself, with the logo prominently visible? Haven't you seen Big Mike relishing in the consumption of a sandwich on the show Chuck? Those days are already here.

Or the Apple logo plastered on any and every laptop or monitor a character is using.

FOX have the issue with auto ad skip feature.. they are mostly fine with been able to fast forward past the ads on recored content

it be far less fussy to just disable auto ad skip for FOX programs (but leave fast forward on) then going to court (even thought once i have recored them i not really want to bother with ads (99% of ads in the USA are pure stupid any way)

in the USA do they do the same as ITV in the UK have an ad every 5-10 mins ? (only ITV do it here thought)

then when FOX contract runs out they charge Dish Twice the price to get it back

As I understand it ... Once content providers sell the "Right to re-broadcast" to any cable outlet, they own that right. I remember the same attack when TiVo arrived on the scene. Dish will however dance with the Devil on the contract renewal, but Fox will come out on the short side of this one unless they can get all the other content providers to the same party.

Can you imagine the PR war if Fox tried to strong arm Dish during contract negotiations over this? Dish would run ads everywhere touting how Fox was jacking up their rates unreasonably because they couldn't deal with a 30 second skip feature. We've seen these sorts of tussles during regular negotiations and the party that owns the platform pretty much gets to own the message.

I applaud the judge for standing up to fair use, but as a Dish subscriber I don't think I'd use that feature anyway.

I don't trust that the receiver would be able to tell when the commercials began and ended and wouldn't somehow miss part of the actual program. I have a feeling Fox and the other networks might play a bit fast and loose with the broadcast flags (if that's how it's determined) and the result would be a lot of angry viewers who miss out on chunks of what they thought they were recording.

I've noticed that the networks are designing programs to end past the published record window so that you're force to either watch live or record the program after what you wanted to watch if you want to catch the final bit of whatever you wanted to record.

As it is, it's not so hard to hit the 'skip forward' button a few times, and it has the added bonus of letting you rewind to actually watch a commercial if it's for a product you're interested in, or if it looks entertaining.

Can you imagine the PR war if Fox tried to strong arm Dish during contract negotiations over this? Dish would run ads everywhere touting how Fox was jacking up their rates unreasonably because they couldn't deal with a 30 second skip feature. We've seen these sorts of tussles during regular negotiations and the party that owns the platform pretty much gets to own the message.

Hell, just the publicity around the spat (c.f. Streissand Effect) would be free advertising for Dish and negative advertising against Fox. But the behaviors of Fox's various media properties don't often border on the rational anyway. They do make an awful lot of money, but that speaks more to the behaviors of their audiences. Sad that.

Can you imagine the PR war if Fox tried to strong arm Dish during contract negotiations over this? Dish would run ads everywhere touting how Fox was jacking up their rates unreasonably because they couldn't deal with a 30 second skip feature.

But if the ads get auto skipped because of the hopper, who would ever know?

NulloModo wrote:

I don't trust that the receiver would be able to tell when the commercials began and ended and wouldn't somehow miss part of the actual program. I have a feeling Fox and the other networks might play a bit fast and loose with the broadcast flags (if that's how it's determined) and the result would be a lot of angry viewers who miss out on chunks of what they thought they were recording.

Dish only needs a dozen interns watching the major networks each night to manually time the segments, or flag key frames for the receivers to find (which should be more accurate and take into account local channels having longer ad breaks). I think the auto skip is only available after 24 hours so they have time to figure out the timing and then push it to the boxes.

Does anyone have any technical details on how the hopper works? Are dish multiplexing all the major networks into one h264 stream for the box to save to the hd, or is it truly multiple tuners with separate files for each network?

Does anyone have any technical details on how the hopper works? Are dish multiplexing all the major networks into one h264 stream for the box to save to the hd, or is it truly multiple tuners with separate files for each network?

I haven't upgraded to a Hopper unit yet (right after they came out the wanted $100 plus a contract renewal, I said I'd do one or the other but not both and they said they couldn't do anything, not sure if that's changed) but from what I've read about them you can record up to six programs at once (2 of your choice plus the four networks) or if you don't use the Primetime anytime function, you can record up to three at once, so it seems like it's a three tuner box, that can somehow record four streams at once with one tuner.

Right now I have a dual tuner DVR box with the OTA tuner upgrade card, so I can record four at once - two sat feeds and two OTA feeds. I'm not sure if the Hopper has any OTA capability either out of the box or through an upgrade card.

Does anyone have any technical details on how the hopper works? Are dish multiplexing all the major networks into one h264 stream for the box to save to the hd, or is it truly multiple tuners with separate files for each network?

It's an interesting question. I had plugins for my Windows Media Center before they killed off analog cable around here and they would automatically remove ads from recorded shows. Not sure if they counted on a user-generated database or what but they worked pretty well and this was a good 4 years ago.

Customers cheer at the expense of an entire industry. While I'd love the feature myself, I also realize that programming is funded by ads.

You are profoundly wrong. Networks can survive on carriage fees and residuals.

CNN is a great example. They have 100% of their budget (plus some profit) covered by carriage fees alone. Think about that fact every time you're subjected to one of their horribly obnoxious, intelligence insulting commercials. "HEADON! Apply directly to the head. HEADON!..."

Networks run ads for two reasons: profit, obviously but perhaps less obvious is that it saves them from having to produce content.

Go watch an old episode of Star Trek, they're 51+ minutes. Modern TV is now barely 42 minutes of "content" in every hour and even then that 42 minutes is counting credits, title sequence, bumpers, recaps and "coming next time." By the time you factor all of that in you get something closer to 36 minutes of content in each hour. You won't find many admitting it but networks love commercials because it saves them from producing content.

Consider the example of Adult Swim. While the big four are airing infomercials (that's 100% pure advertising) Adult Swim is airing actual content with highly reduced commercials, they even finance a good bit of original content. Alas, most are moving in the opposite direction. Why produce original content and actually fill the air waves with it when you can crank out a few reality shows or the same procedural they've made five-hundred times before, book-end it with a few hours of "late night" and then just drop into hours of infomercials.

It doesn't have to be this way. Networks could devote 55 minutes out of the hour to content leaving 1 minute ads between "acts" and still turn a profit, especially when you consider how valuable those ads would become. Heck, people might even watch them. The problem isn't ad skipping technology; the problem is the proliferation of ads by networks that have forgotten why they exist: content.

Full discolsure: I'm an employee of Dish, but I do not work in PR, customer service, programming, or in developing technologies. So, I'm going to play the safe road and not take sides, even though I'd really like to. Take that as you will.

TheCrackLing wrote:

I guess DVR = VoD now. Awesome!

Not in the sense of VoD = Video-in-cloud which is streamed to individual STB's. It's likely that Fox is using "VoD" in order to strengthen their legal position in light of how hokey the US is on common technological terms. The Hopper does provide access to third-party streaming content (HBO, Starz, etc) and Blockbuster@home which they built from the remnants of their Blockbuster purchase.

BigLan wrote:

Does anyone have any technical details on how the hopper works? Are dish multiplexing all the major networks into one h264 stream for the box to save to the hd, or is it truly multiple tuners with separate files for each network?

Gigaom featured a fairly comprehensive article concerning the internals of the Hopper. It has three tuners, one of which is dedicated to the Primetime Anytime feature. Primetime Anytime records the content of the four major OTA networks during prime time hours and makes them available on the 2TB DVR for eight days after air time. The AutoHop feature only works on this content. Any other content is still subject to skipping with the remote as you please.

I don't trust that the receiver would be able to tell when the commercials began and ended and wouldn't somehow miss part of the actual program. I have a feeling Fox and the other networks might play a bit fast and loose with the broadcast flags (if that's how it's determined) and the result would be a lot of angry viewers who miss out on chunks of what they thought they were recording.

We have Dish Network and use the PrimeTime Anytime feature that uses this "hop" feature. So far, it works pretty darned well. I don't know how exactly it works, but my best guess at the moment is that when it detects a commercial, it jumps ahead until it sees the logo in the top left corner indicating what the TV rating is, then scoots back a little to catch the beginning of that segment. If that's true, and assuming that logo is required to be displayed after every commercial break (I'm guessing it is), then I don't see anyone being able to get around that.

EDIT: I should point out that skipping the commercials is completely optional. Every time you go to play a show from the PTA folder, you are asked if you want to hop past the commercials. The default answer is NO. You have to very deliberately change the option to auto-hop.

NulloModo wrote:

As it is, it's not so hard to hit the 'skip forward' button a few times, and it has the added bonus of letting you rewind to actually watch a commercial if it's for a product you're interested in, or if it looks entertaining.

We used to think the same thing. It's not a deal breaker, but it totally beats skipping forward; finding you skipped forward too much; skipping back; then waiting a few more seconds.

BigLan wrote:

Dish only needs a dozen interns watching the major networks each night to manually time the segments, or flag key frames for the receivers to find (which should be more accurate and take into account local channels having longer ad breaks). I think the auto skip is only available after 24 hours so they have time to figure out the timing and then push it to the boxes.

Incorrect. It's available immediately as soon as it starts recording, although you can't exactly do this if you are watching live. Also, the shows are available for 7 days from the time they are recorded, along with the auto-skip.

EDIT: I stand corrected. It's not available immediately as others have pointed out. The shows that recorded tonight at 8p don't have the "hop" option available yet, though it's now 9:45p. My guess here is that, once the night's prime time shows are recorded, the DVR works in the background and goes through the recordings to flag the commercial breaks. Someone else pointed out that the option doesn't work for news programs and sports. That seems to confirm my theory that the software is "looking" for the TV rating logo that appears briefly after every commercial break for many TV shows. News and sports don't have those logos, if I'm not mistaken. If not that, then perhaps Dish does have staff that manually create and upload those flags after they are recorded, and local news/sports are excluded because it would take far too much time and manpower to manually add those flags for local programming across the entire country.

BigLan wrote:

Does anyone have any technical details on how the hopper works? Are dish multiplexing all the major networks into one h264 stream for the box to save to the hd, or is it truly multiple tuners with separate files for each network?

I don't know the technical details, but here's how it works. The Hopper has 3 tuners. At any given time, normally you can record/view up to 3 shows on any channel at a time. If you enable the PrimeTime Anytime feature, then from 8p-11p, one of those tuners is recording all the shows for ABC, NBC, CBS, and FOX. They do look reduced in quality to me, so I think they are compressing the stream to make the 4 channels fit in one.

Does anyone have any technical details on how the hopper works? Are dish multiplexing all the major networks into one h264 stream for the box to save to the hd, or is it truly multiple tuners with separate files for each network?

I don't know the technical details, but here's how it works. The Hopper has 3 tuners. At any given time, normally you can record/view up to 3 shows on any channel at a time. If you enable the PrimeTime Anytime feature, then from 8p-11p, one of those tuners is recording all the shows for ABC, NBC, CBS, and FOX. They do look reduced in quality to me, so I think they are compressing the stream to make the 4 channels fit in one.

You have to understand how tuners actually work. You tune in to a transponder signal which includes a multitude of channels. Traditionally your box filters out all but one station from the stream, after all it can't decode more than one at a time so it's a moot point. However with DVR's you open some interesting possibilities. That said, it only matters if the channels you want to record are all on the same transponder. In this case Dish put the "big four" on the same transponder, flagged the option of recording them all with a single tuner and the rest is history.

Does anyone have any technical details on how the hopper works? Are dish multiplexing all the major networks into one h264 stream for the box to save to the hd, or is it truly multiple tuners with separate files for each network?

I don't know the technical details, but here's how it works. The Hopper has 3 tuners. At any given time, normally you can record/view up to 3 shows on any channel at a time. If you enable the PrimeTime Anytime feature, then from 8p-11p, one of those tuners is recording all the shows for ABC, NBC, CBS, and FOX. They do look reduced in quality to me, so I think they are compressing the stream to make the 4 channels fit in one.

Thanks (and the other replies.) Looks like they're multiplexing the majors onto one stream which ties up one of the tuners, it's a neat trick and there shouldn't be too much compression as they usually fit 6 or 7 channels on each transponder channel anyway. I guess there might be some to make sure the hard drive doesn't choke if it's being maxed out (recording from the 3 tuners and playing back 4 separate recordings.)

sryan2k1 wrote:

Quote:

I don't trust that the receiver would be able to tell when the commercials began and ended and wouldn't somehow miss part of the actual program.

MythTV has been able to do it forever in software. There are several very important markers that tell when a program is going to/from a commercial. Network logos, all black, audio levels, etc.

There's a couple of windows programs to do it too - comskip being the main one. It can get tripped up if a local channel doesn't do a smooth transition to commercials, but works fairly well. If dish wanted to make sure they could have people review the detected breaks.

You have to understand how tuners actually work. You tune in to a transponder signal which includes a multitude of channels. Traditionally your box filters out all but one station from the stream, after all it can't decode more than one at a time so it's a moot point. However with DVR's you open some interesting possibilities. That said, it only matters if the channels you want to record are all on the same transponder. In this case Dish put the "big four" on the same transponder, flagged the option of recording them all with a single tuner and the rest is history.

Digital cable works the same way too. In the early days of clearqam tuners I was beta testing BeyondTV (pvr software) which captured the raw mpeg2 transport stream which contained several channels, so I assumed that was what dish was doing. To most people I'm sure it appears to be magic, but as usual there's a simple explanation for it.

(Those beta tests were quite fun actually, the video on demand channels were actually sent out over clearqam from the local head end, so you could tune into them pretty easily. I always wondered which of my neighbors were buying/watching porn on a Saturday afternoon.)

It doesn't have to be this way. Networks could devote 55 minutes out of the hour to content leaving 1 minute ads between "acts" and still turn a profit, especially when you consider how valuable those ads would become. Heck, people might even watch them.

Fox tried this four years ago (with the first seasons of Dollhouse and Fringe among other shows). The fact that they didn't continue is a pretty good indication that they weren't seeing as much or more money from those shows than from traditional, shorter shows.

kwintsommer wrote:

The problem isn't ad skipping technology; the problem is the proliferation of ads by networks that have forgotten why they exist: content.

But that's not why they exist. They exist to make money. Selling you content for your eyeball time is simply how they do so.

Do Dish DVRs still have the button that instantly jumps ahead 30s? Several years back I had Dish and that was my first digital recorder, it was honkin' awesome! It was great to hit the jump button 5 or 6x when commercials came on, hit the back button (which jumped back ~10s), and right there for the show again. Total time, 6 or 7 seconds!

Then I moved to a Time Warner area and their DVR was a steaming pile. Super laggy, slow as crud, frequently missed inputs, and only fast-forward, no jump. Now I have DirecTV and their DVR has a "jump" button but it just fast forwards ~30s (not even at the fastest speed).

Pretty clear both mean for you to still see the commercials, even if you're skipping past them. Being able to instantly jump past them was much better but of course less advertiser-friendly.

Do Dish DVRs still have the button that instantly jumps ahead 30s? Several years back I had Dish and that was my first digital recorder, it was honkin' awesome! It was great to hit the jump button 5 or 6x when commercials came on, hit the back button (which jumped back ~10s), and right there for the show again. Total time, 6 or 7 seconds!

Yup. It's the most-used button on my remote. One of the things I've noticed is that it also skips the lulls between downs in football as well, which makes it a great way to watch a recorded game in about an hour and a half.

It doesn't have to be this way. Networks could devote 55 minutes out of the hour to content leaving 1 minute ads between "acts" and still turn a profit, especially when you consider how valuable those ads would become. Heck, people might even watch them.

Fox tried this four years ago (with the first seasons of Dollhouse and Fringe among other shows). The fact that they didn't continue is a pretty good indication that they weren't seeing as much or more money from those shows than from traditional, shorter shows.

kwintsommer wrote:

The problem isn't ad skipping technology; the problem is the proliferation of ads by networks that have forgotten why they exist: content.

But that's not why they exist. They exist to make money. Selling you content for your eyeball time is simply how they do so.

Networks periodically push one event or another as "limited commercial interruption." It's not because they believe in that model, it's because it makes a good advertising ploy. It was in that vane that Fox launched an ad campaign entitled "remote free TV" if I recall correctly. It was heavy on promises of "changing the game" and at the end of the day what was the result? Dollhouse Season 1. Full episode length, credits and all: ~49 minutes and I remember Fox playing ads over the credits so shave that down a bit more. That's 11+ minutes of ads to sit through for every episode. I'd hardly call that "remote free TV." So, when you make a half-assed attempt that in truth is just an all-too-familiar advertising ploy, I can imagine it performing poorly.

As regards the revelation that "They exist to make money," yes I am aware of the concept of capitalism. I am also aware that HBO (with no commercials) brings in annual revenue of $4 billion with easily $1 billion of that being profit. We have the current model because networks execs have been chasing quarterly gains for so long that all they know are advertising figures. So long as we're on the topic of Joss Whedon, Fox had his masterpiece Firefly (it's 9.2 on IMDB), they aired 11 of the 14 episodes before cancelling it for low ratings. They never aired the three remaining episodes (already paid for and produced). Better to run an informercial, they pay better. Around that time Fox also cancelled the critically acclaimed (9.3 on IMDB) Arrested Development giving it one and a half seasons again because of low ratings. They had superb shows and they canned them in short order because of the dysfunctional, ad-driven system.

Do Dish DVRs still have the button that instantly jumps ahead 30s? Several years back I had Dish and that was my first digital recorder, it was honkin' awesome! It was great to hit the jump button 5 or 6x when commercials came on, hit the back button (which jumped back ~10s), and right there for the show again. Total time, 6 or 7 seconds!

I got very good at using that buton when we had Dish. Fantastic feature. Also love the "back 10 seconds" button, for when you miss something.

Now, we're on a small-time cable service because they bundle fast internet access with the package. The DVR isn't as nice, and the signal tends to be flaky, but the fast download speeds for my computer make it worthwhile.

Who watches commercials anyway? They used to be a pleasant break where you'd get a minute or two to visit the fridge. Now, they're almost 12% of the show you're watching. Commercials are SO long, I somethimes forget where they were in the plot if they ever get back to the show. It has become absurd how much commercial time is sold. So what do consumers do? They skip right through them. I know I do. Ten years ago, I could take surverys and tell you something about all the commercials I watched. I took one recently and could not answer ONE question. And, even more annoying now is they take the bottom 1/3 of your screen to hawk crap over the picture you're supposed to be seeing.

ENOUGH IS ENOUGH. If they'd go back two to three commercials per half hour, charge more, they'd be more effective because it would be more trouble to skip them than to just let them run.